5.  The applicants are currently in detention.
6.  On 7 May 2005 the victim, P.R., a registered alcoholic, was attacked in his flat. He suffered extensive injuries and spent a month in hospital.
7.  He made a statement to the police on 3 June 2005. The statement bore a statement of truth which read:
“This statement ... is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything in it which I know to be false or do not believe to be true.”
8.  In his statement, he explained that on the day of the attack he had been at home in his flat and had drunk at least three litres of cider in the course of the day. At various times during the day he had been in the company of X., B. and M. At some point B. and M. had left his flat and had returned carrying a television and a hi-fi system, which they had placed in a bedroom. Later in the evening, X., B. and M. had left, although the victim explained, “I don’t know times and my memory is vague”. He then recalled answering a knock on the door, following which three men had entered the premises by force and attacked him. The victim said:
“The bigger male out of the three started punching me to the face, followed by a man who was on crutches. I was getting punched by all of them and I eventually fell to the floor. I was dragged and pulled into the bedroom where they saw the television and hi-fi system. I remember them going mad punching me more and more to my body and face. I don’t remember much else.”
9.  He described the features of the “bigger male” and the “male on crutches”, who he knew lived in the same block of flats. He said that the third male was called “Horncastle” and also described him.
10.  The victim died on 23 July 2006 from an alcohol-related illness.
11.  Mr Horncastle and Mr Blackmore were subsequently charged, together with another man, D., with causing P.R. grievous bodily harm with intent.
12.  The prosecution case was that B. and M. had burgled another flat in the victim’s block of flats, and had taken the stolen property to the victim’s flat. B. and M. had pleaded guilty to that burglary. The prosecution alleged that the attack on the victim had occurred when Mr Horncastle and Mr Blackmore had gone with D., the owner of stolen property, to recover it. They claimed that Mr Blackmore was the “bigger male” and D. was the “male on crutches”.
13.  The defence case was that although Mr Horncastle and Mr Blackmore had gone to the victim’s flat to help recover D.’s property, neither had been involved in the attack.
14.  In a statement to the police, Mr Horncastle said that the victim had been very drunk, and that he (Mr Horncastle) had collected the television and returned it to D.’s flat. He had not seen the attack on the victim.
15.  In his statement to the police, Mr Blackmore said that he had been drinking with D. and Mr Horncastle. They had gone back to D.’s flat at about 9 p.m. and discovered that it had been burgled. D. had asked if they would go with him and recover what had been stolen, as he had been told where it was. They had gone to the victim’s flat at about 10 p.m. The door had been opened by a man whom the others had pushed out of the way. They had seen the stolen property. He had picked up a DVD player and walked out, stepping over P.R., the victim, lying on the floor. Mr Blackmore said that he had had some specks of blood on his shoes, jeans and T-shirt which had come from the wall or a splatter when the victim had been hit. He had been aware that the victim was getting punched and had not wanted to have anything to do with it. He did not know what happened after that. He had put the DVD player in the lift and returned to the flat. At that point the victim was still lying on the floor and there was blood everywhere. He had not hit the victim. He had not expected them to do what they had done.
16.  Another resident of the block of flats, J., made a statement to the police suggesting that M. might have been involved in the assault on the victim. That statement was disclosed to the defence. The defence was ultimately based on the assertion that M. was the perpetrator.
17.  The prosecution applied to read the victim’s statement at trial, under section 116(2)(a) of the Criminal Justice Act 2003 (“the 2003 Act” – see paragraphs 93-94 below). The application was opposed by the applicants under section 78 of the Police and Criminal Evidence Act 1984 (“PACE” – see paragraph 90 below) on the ground that it would be unfair to admit the statement which constituted the only admissible evidence of participation against them, as there could be no opportunity to challenge it and it was inherently unreliable. The applicants relied on the admission by the victim that he had drunk a quantity of alcohol; on his statement that “I don’t know times and my memory is vague”; and on the fact that the description given of the first male did not fit Mr Blackmore.
18.  The judge ruled on 24 January 2007 that the statement should be admitted. He found that the condition in section 116(2)(a) was satisfied (namely, that the witness was dead); and that the fact that the statement was the principal evidence against the defendants did not make its admission unfair. He relied in particular on the fact that the defendants had all admitted being present in the victim’s flat together to recover D.’s property; that the defendants were going to call J. to give evidence that M. had been responsible for the attack; and that the jury could be given directions as to any difficulties faced by the defence on account of P.R.’s statement being read.
19.  In March 2007 the trial commenced before a judge and a jury. D. subsequently pleaded guilty. The jury in the trial were later discharged for unrelated reasons and a retrial was ordered. A second trial commenced in June 2007, but the jury were again discharged following an issue in relation to the forensic evidence. A third trial commenced in November 2007.
20.  The prosecution relied on other evidence, besides the statement of the victim. X., who had spent the day drinking with the victim, gave evidence to the effect that P.R. had been tipsy but not drunk on the afternoon of the attack. He also testified that he had subsequently visited the victim in hospital, where the victim had indicated that he had been attacked by three people but that he could not really remember who had attacked him. Two witnesses gave evidence that the victim had told them that D. and his friends had attacked him. There was also scientific evidence that the blood on the television matched that of the victim. Forensic evidence suggested that the assault had commenced at the front door and the hallway and then moved to the entrance of the bedroom. There was pooling of blood at the entrance to the bedroom, as if the source of the blood had lain there for some time. Blood on D.’s crutches matched the victim’s DNA profile. Evidence was also led to show that P.R. had shown no fear of M. when meeting him after the attack.
21.  Mr Horncastle gave evidence in his defence. He said that he had been drinking all day with D. and Mr Blackmore. In the evening they had returned to D.’s flat and realised that it had been burgled. They had gone downstairs to another flat and he had followed D. inside. He had seen a man staggering in the hallway. D. had then pointed out the items that had been stolen. Mr Horncastle had picked up the television and returned to D.’s flat. He had not seen an assault and had not seen any blood. He, Mr Blackmore and D. had returned to the pub.
22.  Mr Blackmore did not give evidence at trial.
23.  P.R.’s neighbour, J., was called to give evidence for the defence. He testified that he had heard some shouting and banging on the night of the attack and had seen M. banging on doors. Later he had seen M. holding P.R. in a headlock; another person had been with him. He had closed the door but had heard a lot of shouting and noise for the next twenty minutes. His answers in cross-examination were not consistent with his previous statement to the police.
24.  The judge, on Mr Blackmore’s application, admitted evidence of M.’s previous convictions as evidence of a propensity for violence. The judge refused to admit evidence of the previous convictions of Mr Horncastle and Mr Blackmore.
25.  The judge made clear the importance of P.R.’s witness statement at the outset of his review of the evidence in the summing up to the jury, noting:
“The prosecution case here depends, does it not, upon the evidence of [the victim].”
26.  He explained to the jury that the victim’s evidence was not agreed, that the defence had not had the opportunity of testing it by cross‑examination and that it would carry less weight than evidence from a witness who had come to court and had testified. He set out examples of areas in the victim’s statement which had not been cross-examined.
27.  Just over an hour after the jury had retired, they asked to see the victim’s statement; the judge told them that they could not see it but reminded them of its contents by reading it to them.
28.  The jury subsequently returned unanimous guilty verdicts in respect of both Mr Horncastle and Mr Blackmore.
29.  On 1 November 2007 at around 7 p.m. the victim, H.M., was at home alone in the house she shared with her partner, G.P., preparing to take a bath. Six men entered the house and stole various items, including jewellery. After threatening the victim with a knife, they kidnapped her by taking her away in the car they had come in. A black BMW X5 car owned by her partner was also taken at the same time.
30.  The victim subsequently made a formal statement to the police, containing a statement of truth in the terms outlined above (see paragraph 7), giving an account of events on 1 November 2007. She stated that, as she had been about to bathe, two masked men had entered her bedroom; one had a knife. She had been ordered downstairs where there were four other men. They had asked where the jewellery, money and car keys were and she had told them about her partner’s safe in his wardrobe. Four of the men had then taken her to the car they had come in and had driven off. She assumed that the other two men had taken G.P.’s car.
31.  The men in her car had then asked for G.P.’s telephone number, which she gave them, and they had telephoned him. She described the telephone conversations that followed and explained that the men had told her that they wanted one hundred thousand pounds before they would let her go. She had also been told that she should not go to the police because she would know what would happen to her if she did. She had been warned not to look at her captors, and had taken the threats to mean that they would kill her if she saw their faces. She said that she had been punched twice in the back of the head, which she understood to have been intended to show her that her kidnappers were serious about hurting her. She had heard her captors say that if they did not get money they would cut off her fingers and toes. One of the men had said something about putting her in a vice. She was eventually put in the boot of the car for a while before being dropped off unharmed. After unsuccessful attempts to telephone G.P. from various locations, she had eventually spoken to her father who had picked her up. She had arrived home shortly after 9 p.m. and the police had arrived around ten minutes later. In her statement, she did not identify any person as having participated in her kidnapping.
32.  On 1 November 2007 G.P. made a short statement setting out his account of the ransom demands and how the kidnappers had threatened to cut off the victim’s fingers if he did not pay the ransom.
33.  On 2 November 2007 Mr Graham was arrested in G.P.’s stolen car after having been seen on CCTV. A knife was found in the car.
34.  On 3 November 2007 H.M. made a further police statement. She was shown the knife which had been recovered from the car in which Mr Graham had been arrested and asked if she had seen it before. She confirmed that it was the knife used to threaten her.
35.  On 4 November 2007 a police officer visited G.P. and the victim, in the presence of the latter’s father, and told them “in no uncertain terms” that the men the police were seeking were dangerous and that it was not beyond them to use guns. He gave as an illustration the use of guns against a couple who had fled and had been murdered in the village to which they had been relocated. He spoke to them about moving.
36.  On 22 November 2007 the victim and G.P made police statements to the effect that they wished to retract their previous statements and did not want the police to pursue a prosecution, as they were scared for the safety of their families.
37.  Mr Marquis and Mr Graham were charged with kidnapping. The prosecution relied on other evidence, apart from the victim’s statement.
38.  First, Mr Graham was seen with other masked men on the CCTV cameras entering the victim’s house on the evening of 1 November 2007. That evidence was not disputed at trial although when initially questioned Mr Graham had not accepted that he had been to the house or that the person shown on the CCTV was him. It was also not disputed that G.P.’s car had been taken from outside the house shortly thereafter. The telephone records proving that G.P. had subsequently been contacted on his telephone from the victim’s telephone and that a number of calls were made from Mr Marquis’ telephone to G.P. were undisputed.
39.  There was evidence that Mr Marquis had spent the night of 1‑2 November 2007 at a hotel and that a woman of his acquaintance, K.H., had gone to the hotel to meet him that night. She gave evidence that she had been told to park her car between a red van and “my X5”. When she had gone to Mr Marquis’ room, she had been introduced to a man (whom Mr Marquis refused to identify). She had seen a pink telephone which was identical to the one owned by the victim. It was accepted that the telephone used to call G.P. that night was also used by Mr Marquis to contact K.H. between 31 October and 2 November 2007. A text to her from Mr Marquis at 1:35 a.m. on 2 November stated:
“Hey don’t let no-one know where I am, you know. Remember I know your address and that. You should have just said you were going. I ain’t bothered, but if I get arrested, I know it’s you”
40.  CCTV evidence showed Mr Graham at the wheel of G.P.’s car twice on 2 November 2007; on the second occasion the car had false registration plates.
41.  There was also evidence that a man describing himself as John Graham had rented a room at the hotel where Mr Marquis had stayed on 1 November 2007 and had described himself as the driver of a black BMW X5.
42.  Mr Graham’s defence was that there had been no kidnapping. He claimed that the victim and her partner had been involved in an attempted insurance fraud. Mr Marquis denied any involvement in any kidnapping that there may have been.
43.  The victim and G.P. did not attend court on 4 April 2008 in compliance with a witness summons that had been issued for the trial. The victim was arrested on 7 April 2008 and brought to court. On giving an explanation to the judge that, although she was frightened, she would have attended court but had been told not to attend by Witness Support, she was bailed to appear on 9 May 2008. She was warned that if she did not attend a warrant for her arrest would be issued and she could be imprisoned for up to two years. The trial was fixed for 12 May 2008. G.P. later surrendered into custody and was also bailed to appear.
44.  The victim made a further statement on 9 April 2008 which was video recorded. In it she said that she had made the retraction statement of 22 November 2007 because she was scared. She thought that those who had kidnapped her were dangerous and she was very frightened. She said:
“Since I was kidnapped, I have found that the incident has altered my life. I am petrified. I find myself looking over my shoulder and wondering if the people responsible will come and get me. I feel like this because at the time they said to me, ‘You’d better not go to the police ‘cos you know what will happen if you do’.
I perceived this as a direct threat against me and I just don’t know what they are capable of, considering that they forced their way into my house and kidnapped me. I perceive them as very dangerous people.
As such I am terrified all of the time and find myself very tearful, and I am almost not sleeping at night.”
45.  She added that the police had made her more frightened when they told her that she and G.P. had to move. She did not feel she could leave her house for fear of what might happen to her and her anxiety had been increased by the court case.
46.  She confirmed that the police had explained the possibility of using special measures at trial. She said that her evidence would be “greatly enhanced” if she could speak from behind a screen in the court room. Finally, she said that she had not been subjected to any threats directly or indirectly from those responsible for kidnapping her, but that she still felt scared.
47.  G.P. made a statement on video on 16 April 2008. In his statement he referred to the police visit in November 2008 and the advice to “leave town”, which he said had “really frightened” them. He said that he had tried to get in touch, through a friend, with a certain “Bijer” because another friend had recognised the number which had called him on the night of the kidnapping as that of “Bijer”. “Bijer” had rung him, but it was clear that this was not the person who had rung him on the telephone on 1 November 2007. “Bijer” had explained to him that he had sold the telephone the week before. G.P said that he was not scared to give evidence but just did not want to, in case there were reprisal attacks.
48.  Neither the victim nor G.P. attended court on 9 May 2008. The victim’s father’s evidence to the trial judge was that she had packed her bags and fled the day before.
49.  On 12 May 2008, the prosecution applied to read the statements of H.M. and G.P. under section 116(2)(e) of the 2003 Act on the grounds that they would not give evidence through fear (see paragraphs 93-94 below). The applicants argued that the statements could not be admitted as the fear did not fall within the meaning of the 2003 Act as it had not been generated by any action of theirs or their associates, but by what the police officer had said on 4 November 2007 (see paragraph 35 above).
50.  On 13 May 2008 the trial judge handed down his ruling on the admission of the statements. He noted, in respect of H.M.’s video statement of 9 April:
“I have seen a portion of that tape and it is perfectly clear to me the witness was petrified, genuinely really distressed, breaking down into tears.”
51.  The judge heard evidence from the victim’s father and the police officer who had spoken to her on 4 November 2007. He observed that in her witness statement of 9 April, H.M. had explained that she was “more” scared as a consequence of the police advice, noting that this was “on top of her own fears”. He also observed that in her statement, H.M. had confirmed that the possibility of special measures at trial had been explained to her. He referred to the warning that he had given her as to the serious consequences if she failed to attend court (see paragraph 43 above). He concluded:
“Having heard all the evidence, the only sensible conclusion is that she was and is so terrified of coming to court to give evidence, she would rather face arrest and imprisonment. I have no doubt she’s in fear of giving evidence.”
52.  The judge noted that there was no qualification in section 116(2)(e) of the 2003 Act on how the fear had to have been generated. He accepted that H.M. qualified under the Act to have her statement read as a witness in fear, and stressed that there had been no bad faith by the police in respect of the advice that they had given. The judge found that it would not be unfair or unjust to admit the statement.
53.  In the same ruling the judge declined to admit the evidence of G.P. as he was not satisfied that his non-attendance was due to fear.
54.  On 15 May 2008 an application was made to the judge to admit G.P.’s statement made on 16 April 2008 in the interests of justice under section 114(1)(d) of the 2003 Act (see paragraph 92 below) so that it could be advanced as part of the defence case of Mr Marquis. It was submitted that Mr Marquis was put at a great disadvantage because the defence could not cross-examine G.P. in relation to the voice heard over the telephone on 1 November 2007. The judge refused the application on the basis that G.P. was not in fear and he was not prepared to go behind his ruling of 13 April 2008; and the evidence covered many matters which implicated the applicants and not just that part of it relating to the recognition of the voice over the telephone.
55.  Mr Marquis and Mr Graham were tried at the Crown Court before a judge and a jury.
56.  Oral evidence was heard from S., a friend of G.P., which the judge directed the jury to treat with caution. S. said he had been with G.P. on the night of the kidnapping when G.P. had received a telephone call. He had answered it and had looked distressed. S. had been able to hear some of the conversation, including a demand for money and a girl crying in the background. G.P. had told him that someone had taken his girlfriend and was demanding money. There had then been a couple more calls. G.P. had asked him to telephone the police which he had done. The tape of that call recorded the person calling the police as giving an account that three black males were demanding money while holding his girlfriend in the bathroom at her house. S. gave evidence that G.P. had also received further calls from another telephone. S. had recognised the telephone number and when he had put it into his own mobile telephone it had registered as belonging to Bijah (the abbreviation used by Mr Marquis for his first name). When S. denied that Bijah was the same person as Mr Marquis, the judge permitted him to be treated as a hostile witness and evidence was put to him to show he knew Mr Marquis.
57.  A police officer gave evidence that he had called S.’s mobile telephone and had spoken to a man who had given his name as G.P. He had sounded agitated and was shouting that they had kidnapped her. He had then heard a mobile telephone ringing and had been told by G.P. that it was his girlfriend’s number. G.P. had asked him to listen. He had been able to hear some of the demands for money when the two telephones were held against one another. The telephone had rung again and he could hear a girl’s voice screaming that they had taken her. When the telephone had gone dead, G.P. had confirmed that it was his girlfriend and that he did not know where she was. He did not say where he was but said that he would be returning to their home shortly. Another call had then taken place during which money was demanded.
58.  The victim’s father gave evidence that he had received a telephone call between 8.30 p.m. and 8.45 p.m. on 1 November 2007 from his daughter. She had told him that she had been kidnapped and needed to be picked up. She had sounded distressed. He had collected her and she had given him an account of what she said had happened. She had tried to contact her partner on the telephone, but had not answered. They had gone to her home to see if he was there. When they had arrived at the house, two of her friends were there and asked what had happened. She had given an account, tearful and shaken. The victim’s father had then searched the house but G.P. was not there. He had found lukewarm water in the bath and had telephoned the police. Before they came, the victim had given an account of what had happened which was consistent with the statement she subsequently gave to them.
59.  Mr Marquis gave evidence at trial, denying any role in the kidnapping. He stated that his telephone had been used by him between 31 October and 2 November 2007 to contact K.H., but that he had lost it when he got into a car owned by some men on the afternoon of 1 November 2007 and did not get it back from them until he was at the hotel. The telephone had therefore not been in his possession when the calls had been made to G.P. He would not identify the men. When he had gone to the room at the hotel, the pink telephone was already there, but he had no idea how it had got there.
60.  Mr Graham did not give evidence. He provided no evidence from any person which would have formed a basis for the case that the kidnapping was an attempted insurance fraud. It was nonetheless advanced as part of the defence case to the jury.
61.  In his summing up, the trial judge directed the jury in relation to the way that they should treat H.M.’s statement and the disadvantages to the applicants of being unable to cross-examine her.
62.  On 12 May 2008 Mr Marquis and Mr Graham were convicted of kidnapping.
63.  Mr Horncastle and Mr Blackmore appealed against their convictions on the ground that the victim’s statement should not have been admitted as evidence. They submitted that the statement was the sole or decisive evidence against them.
64.  Mr Marquis and Mr Graham appealed against their convictions on the grounds, inter alia, that the victim’s statement should not have been admitted because there was no evidence that the fear had been caused by the applicants, and the police had contributed hugely to the fear. It was also contended that her evidence was decisive in the case, as it was the only evidence that there had been a kidnapping.
65.  On 22 May 2009, the Court of Appeal unanimously dismissed the appeals.
66.  The court found that Article 6 § 3 (d) did not create any absolute right to have every witness examined and that the balance struck by the 2003 Act was legitimate and wholly consistent with the Convention. It noted, however, that there could be a very real disadvantage in admitting hearsay evidence and it needed cautious handling. Having regard to the safeguards contained in the 2003 Act, which were rigorously applied, it was of the view that there would be no violation of Article 6 if a conviction were based solely or to a decisive degree on hearsay evidence. Where the hearsay evidence was demonstrably reliable, or its reliability could properly be tested and assessed, the rights of the defence would be respected, there would be sufficient counterbalancing measures and the trial would be fair. The court considered that it was not appropriate that there should be a rule that counterbalancing measures could never be sufficient where the evidence was sole or decisive.
67.  In terms of counterbalancing measures, the Court of Appeal considered that the power of a trial judge under section 125 of the 2003 Act to stop the case if the absent-witness evidence was unconvincing (see paragraph 98 below) provided for a “proportionate assessment of the reliability” of such evidence; and that it would not serve justice if that power were to be trammelled by a requirement that it be exercised in every case in which the evidence were the sole or decisive evidence. Sole or decisive absent-witness evidence could be wholly convincing and, equally, evidence which was neither sole nor decisive might have such a potential influence on the jury that the judge would be persuaded that a conviction was unsafe. Where there was a legitimate argument that the absent witness evidence was unconvincing and important to the case, the trial judge was required to make up his own mind as to whether a conviction would be safe. This involved assessing the reliability of the impugned evidence, its place in the evidence as a whole, the issues in the case as they had emerged, and all the other individual circumstances of the case. Finally, the other safeguards contained in the 2003 Act were rigorously applied and the difficulties faced by defendants when absent-witness evidence was admitted were well understood by the courts.
68.  The Court of Appeal gave guidance as to when it would be appropriate to allow absent-witness evidence to be introduced because a witness was in fear. There was, in the case-law of this Court, no requirement that the fear had to be attributable to the defendant; the essential questions were whether there was a justifiable reason for the absence of the witness supported by evidence and whether the evidence was demonstrably reliable or its reliability could be properly tested and assessed. The Court of Appeal added:
“87. It is, however, important that all possible efforts are made to get the witness to court. As is clear, the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d). It is only to be departed from in the limited circumstances and under the conditions set out in the [2003 Act]. The witness must be given all possible support, but also made to understand the importance of the citizen’s duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the [2003 Act] based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all. 88. ... In the case before us of Marquis and Graham ... the Judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down, although relocated, and killed. Although notorious, that incident was an extreme and very unusual case. The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness. Whilst the [2003 Act] requires fear to be construed broadly, it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the Judge may have to rule under s.125 that a conviction relying upon it would be unsafe.”
69.  Having considered the general principles, the court turned to examine the specific facts of the applicants’ cases.
70.  The Court of Appeal reviewed the victim’s statement and the evidence presented to the trial court. It found that there was substantial evidence independent of the statement to prove that Mr Blackmore and Mr Horncastle had gone to the victim’s flat, that they had been present when the attack had taken place and that both had taken away items from the flat. It noted:
“108. i) Blackmore and Horncastle both admitted they accompanied [D.] to flat 9 and were present when the door was opened.
ii) Horncastle removed the TV on his own admission. The TV had [the victim’s] blood on it. It is an inescapable inference that Horncastle must have been present after sufficient violence had been inflicted on [the victim] for blood to have got onto the TV. His account that he saw no violence must have been untruthful.
iii) Blackmore admitted taking the DVD and stepping over the prostrate body of [the victim]. He must have been present when the violence began and he returned to the flat to help with removing the TV, despite knowing that [the victim] had been attacked.
iv) Neither appellant contended there was anyone else other than [D.] present at that time they first went to the flat or when the DVD or TV were removed.
v) The scientific evidence pointed clearly to the attack having taken place at the entrance to the flat and at the door to the bedroom which was near the entrance. The attack must therefore have been visible to anyone who remained at the entrance.
vi) It follows from the above that there was a significant amount of evidence which showed that the attack occurred in the presence of each of the appellants.
vii) There was no evidence of motive for [M.] to have attacked [the victim]. On the contrary he was a friend of [the victim’s] and [the victim] had shown no fear when he saw him ... after he had been attacked.”
71.  Despite the substantial amount of independent evidence, the Court of Appeal accepted that it was clear from the judge’s ruling on admissibility, from the way in which the case was summed up and from the question from the jury that the victim’s statement was to a decisive degree the basis on which the applicants were convicted.
72.  However, it considered that the decisive nature of the evidence was only one of the factors which the court had to put into the balance in the various stages that it had to go through in applying the legislation. It observed that the judge’s decision on the admissibility of the evidence carefully applied the statutory tests under the 2003 Act; that the applicants had been provided with ample material to attack the victim’s credibility, including the notes of his treatment in hospital; that no application had been made under section 125 of the 2003 Act to stop the case; that the judge’s direction to the jury was very full and that he had drawn attention to the particular matters that put the defence at a disadvantage, in particular the inability to cross-examine the victim as to his memory, his alcoholism, his description of Mr Blackmore and other matters; and that there was no suggested reason why the victim should have provided an untruthful statement.
73.  The Court of Appeal was satisfied that the jury had been able to make a proper assessment of the reliability of the victim’s evidence contained in the statement. It further considered that the jury was right in placing reliance on the statement, as its convincing nature and reliability in important respects could be tested against other evidence, including the applicants’ own admissions; the visit of three persons to the victim’s flat and taking items away; the evidence of blood on the television removed by Mr Horncastle; Mr Blackmore’s evidence in relation to observing the victim on the floor and the blood in the flat; and the other independent evidence to which it had already referred .
74.  The Court of Appeal accordingly concluded that the applicants were provided with sufficient counterbalancing measures to ensure respect for their fair trial rights. They had received considerable information about the victim and his time in hospital; they were able to draw to the jury’s attention all the arguments for treating the statement as unreliable; and they were able to put forward an alternative case that the assault was carried out by M. by calling independent evidence in support.
75.  The Court of Appeal reviewed the evidence at trial and the judge’s decision to admit the victim’s statement. It also examined the directions given to the jury in relation to the way in which they should treat the statement and the disadvantages to the applicants in not being able to cross‑examine the victim, which it considered to be appropriate.
76.  It found, having regard to its observations on the ambit of “fear” under the 2003 Act (see paragraph 68 above), that the judge was correct in his ruling as to the victim’s fear.
77.  The court also took the view that there was sufficient material before the jury to enable them properly to assess the reliability of the victim’s statement. It explained:
“140. ... We also consider that its convincing nature and reliability in important respects could be tested against other evidence including:
i) that when the police visited the house, the bath had lukewarm water in it.
ii) that a knife was recovered from the BMW in which Graham was arrested; she identified it as the one used on her.
iii) that [G.P.] was phoned using her phone and an identical phone was seen in the bedroom at the Castle Marina Holiday Inn used by Marquis.
In considering the overall fairness of the decision to admit the evidence of [the victim] and in looking at the safety of the conviction, we have taken into account the criticism of the judge’s refusal to admit the statement of [G.P.]. Marquis sought to admit only part of his evidence contained in the statements. The judge had concluded that [G.P.] was not in fear and could have attended. To have admitted the whole of the evidence in those circumstances would not have been in accordance with the statutory code and to have admitted part of it on Marquis’ application would have been to provide evidence that was misleading without the rest of the evidence.”
78.  The Court of Appeal considered it clear that the convictions did not rest on the evidence of the victim to a decisive extent. It noted:
“142. ... i) The main evidence against Graham was that there was clear CCTV evidence that Graham had been at the house at the time [the victim] said she was kidnapped; he admitted that, though in his interview he had not accepted that. He was arrested in [G.P.’s] stolen BMW X5. [The victim’s] statement did not identify him.
ii) The main evidence against Marquis was that his phone was used to make the ransom demands heard by [S.] and [the police officer]. It was not disputed that a phone identical to one owned by [the victim] was seen by [K.H.] when she went to Marquis’ bedroom at the Marina Castle Holiday Inn. [The victim’s] statement did not identify him.
iii) The only matter proved by [the victim’s] statement was that she had been kidnapped. There was, however, sufficient evidence of that from the other witnesses in the case, particularly her father.
iv) There was no evidence to support the case advanced by Graham that the kidnapping was an attempted insurance fraud.
v) Counsel for the Crown had submitted in his application to the judge to admit the statements of both [G.P.] and [the victim] that they were central to the case. However, the fact that this submission was made is an illustration of the difficulty ... of determining in advance whether the evidence is decisive. Self evidently the evidence of [G.P.] made no difference, as it was not admitted and in the result, for the reasons we have given, the evidence of [the victim] was not, in the event, decisive.
vi) Thus, if contrary to the view we have expressed, a statement of a person kept away by fear could not be relied upon as evidence of a decisive extent in favour of a conviction, then as the conviction rests on other evidence, then that ground of appeal fails for that additional reason.”
79.  The court concluded that the applicants’ defence rights were respected, the trial was fair and the convictions were safe.
80.  The applicants appealed to the Supreme Court arguing that the decisions to admit the statements in their cases rendered their convictions unfair. They relied heavily on the judgment of the Fourth Section of this Court in Al‑Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009.
81.  On 9 December 2009 the Supreme Court dismissed the applicants’ appeals. Lord Phillips gave the judgment of the court, with which the other justices agreed. He identified the principal issue raised by the appeals as being whether a conviction based “solely or to a decisive extent” on the statement of a witness whom the defendant had had no chance of cross‑examining necessarily infringed his right to a fair trial under Article 6 §§ 1 and 3 (d).
82.  Lord Phillips began with an analysis of the common law approach to a fair trial and the provisions of the 2003 Act. He set out the legal framework under section 116 of the 2003 allowing, exceptionally, the admission of hearsay evidence at criminal trials (see paragraphs 93-96 below), explaining
“36. ... [T]he [Criminal Justice Act] 2003 contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be.”
83.  He went on to detail the “special stipulations” set out in sections 124-126 of the 2003 Act which were applicable to all hearsay evidence and designed to ensure the fairness of the proceedings (see paragraphs 97-99 below).
84.  He summarised the safeguards present at trial to protect against any potential for unfairness arising from the admission of hearsay evidence as follows:
“38. ... i) The trial judge acts as gatekeeper and has a duty to prevent the jury from receiving evidence that will have such an adverse effect on the fairness of the proceedings that it should not be received.
ii) Hearsay evidence is only admissible in strictly defined circumstances. In essence the judge has to be satisfied beyond reasonable doubt that the prosecution is not able to adduce the evidence by calling the witness.
iii) Once the prosecution case is closed, the judge must withdraw the case from the jury if it is based wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance, the defendant’s conviction would be unsafe.
iv) The judge has to direct the jury on the dangers of relying on hearsay evidence.
v) The jury has to be satisfied of the defendant’s guilt beyond reasonable doubt.
vi) The defendant can apply for permission to appeal against his conviction, which will be granted where reasonable grounds for appeal are demonstrated. A failure to comply with the safeguards outlined above, and in particular the admission of hearsay evidence contrary to the rules on its admissibility, will constitute such grounds. Where the Court of Appeal finds that there has been such a failure, the appeal will be allowed unless the court is satisfied that, despite the shortcoming, the conviction is ‘safe’.”
85.  Lord Phillips considered the approach to absent-witness evidence in other common law jurisdictions. He then examined criminal procedure in civil law jurisdictions and the case-law of this Court prior to the Chamber judgment in Al‑Khawaja and Tahery. He reviewed in some detail the origins and development of the “sole or decisive rule” in the Court’s case‑law.
86.  He then turned to consider the Chamber’s judgment in Al‑Khawaja and Tahery, citing an extract of the judgment which explained that in the absence of special circumstances arising where the absent witness failed to give oral evidence as a result of fear induced by the defendant, it was doubtful whether any counterbalancing measures would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for conviction. He observed:
“103. There are two points to be made about this passage. The first is that the Court appears to have accepted that the sole or decisive rule does not apply so as to preclude the reliance on the statement of a witness who refuses to testify because of fear induced by the defendant. The second is that the Court did not completely close the door to the possibility of ‘counterbalancing factors’ being sufficient to justify the introduction of a statement as sole or decisive evidence in other circumstances. The Court made it quite plain, however, that compliance with the statutory regime under which the statements in the two appeals had been admitted carried ‘limited weight’...”
87.  However, having regard to the judgment of the Court of Appeal and to the development of the “sole or decisive rule” in cases largely relating to civil law jurisdictions, Lord Phillips concluded that the 2003 Act made the “sole or decisive” rule unnecessary in English criminal procedure. He considered that the safeguards it contained meant that if the 2003 Act were observed, there would be no breach of Article 6 § 3 (d) even if a conviction were based solely or to a decisive extent on absent witness-evidence. He therefore held:
“108. In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason. In so concluding I have taken careful account of the Strasbourg jurisprudence. I hope that in due course the Strasbourg Court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.”
88.  As to the applicants’ alternative arguments that, regardless of the application of the sole or decisive rule, the statements should not have been admitted, Lord Phillips relied on the findings of the Court of Appeal, which he said had given the arguments “careful consideration”.
89.  In a separate concurring opinion, Lord Brown observed:
“115. ... Obviously, the more crucial the evidence is to the proof of guilt, the more scrupulous must the Court be to ensure that it can be fairly adduced and is likely to be reliable. In this connection there can be no harm in using the concept of ‘sole or decisive’ so long as it is used broadly ... Understood and applied inflexibly, however, the concept would involve insoluble problems of detailed interpretation and application. 116. The better view may therefore be that no such absolute principle emerges from the Strasbourg Court’s judgment in Al-Khawaja and Tahery v United Kingdom ...”